The Power of the Polls

Senate Republicans need to separate the filibuster issue from the Terri Schiavo case.

Without polls, Bill Clinton might never have survived as president. When the Monica Lewinsky story broke in January 1998, official Washington was ready to declare the Clinton presidency over. "Is He Finished?" asked U.S. News and World Report. Many of Clinton's fellow Democrats felt betrayed by his behavior; few were willing to step forward and defend him—until the polls showed that most of the American people did not want the president driven out of office.

Without polls, Elian Gonzalez might still be with his Miami relatives. Congress was threatening to intervene in his case. "We're going to have hearings to try to find the truth, because there are a lot of questions out there," said Mississippi Republican Trent Lott, then the majority leader of the Senate. But polls showed that the American people thought the child belonged with his father and that politicians had no business getting involved.

Without polls, some politicians' attempts to intervene in the Terri Schiavo case might have succeeded. But in a Gallup Poll last month, three-quarters of Americans disapproved of Congress's getting involved in a private family matter. So President Bush backed down, saying, "Now, we'll watch the courts make their decisions." So did Governor Jeb Bush of Florida, who said, "I've done what I can do. I can't do more than what the law allows me to do."

Some Republicans have been threatening retribution against the judicial branch over the Schiavo case. House Majority Leader Tom DeLay, R-Texas, vowed, "We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." In a videotaped address to a conference called "Confronting the Judicial War on Faith," DeLay spoke of a "judiciary run amok."

"The response of the legislative branch has been mostly to complain," DeLay said. "There is another way, ladies and gentlemen, and that is to reassert our constitutional authority over the courts."

On April 4, Sen. John Cornyn, R-Texas, made this controversial statement: "There may be some connection between the perception—in some quarters, on some occasions where judges are making political decisions, yet are unaccountable to the public—that it builds up and builds up to the point where some people engage in violence."

Democrats, who have been in the awkward position of defending the use of the filibuster to stop President Bush's judicial nominations, now have a new argument. "Apparently, it's not enough for Republicans to rule the White House and Congress," Sen. Edward Kennedy, D-Mass., said last week. "They want power over the independent judiciary, too."

Kennedy added, "The Schiavo case cast a bright light on the dark forces behind the ... campaign" to bar filibusters against judicial nominees.

Republicans do not want people to view their effort to end filibusters against judicial nominees as an attack on the judiciary. For that reason, several key GOP leaders have been at pains to distance themselves from some of the more strident conservative rhetoric. Senate Majority Leader Bill Frist, R-Tenn., told reporters, "I believe we have a fair and independent judiciary today. I respect that." Vice President Cheney told the New York Post that he does not support retribution against judges. And Bush told reporters, "I believe in an independent judiciary. I believe in proper checks and balances."

Republicans need to separate the filibuster issue from the Schiavo case. Boyden Gray, chief strategist in the battle to win confirmation of Bush's judicial nominees, tried to do just that by pointing out that DeLay and the House of Representatives play no role in judicial confirmations. Gray observed that DeLay's criticism was directed at the Court of Appeals for the 11th Circuit, which refused to order the reinsertion of Schiavo's feeding tube. But Gray said, "I have never heard any senator, including the majority leader, attacking the 11th Circuit."

Senate Minority Leader Harry Reid, D-Nev., said, "Let's just calm down and see where the American people are on this issue." That sounds like a man who has the polls on his side. Democrats are now in a stronger position to defend the filibuster. They can depict themselves as defending the courts against an attack from Congress, at a time when the polls have been strongly critical of Congress for intervening in the Schiavo case.

In that case, just as on impeachment and on Elian Gonzalez, Republicans overreached. Each time, the polls determined the outcome. But the most famous case of overreaching involved a Democrat. That was in 1937, just after President Roosevelt had won a second term and was at the peak of his popularity. FDR denounced the Supreme Court as "obstructionist" because it had invalidated several pieces of New Deal legislation. He proposed to expand the nation's highest court by adding one new justice for each sitting justice over the age of 70. That would have meant as many as six new Supreme Court justices.

FDR claimed his plan would restore, not threaten, the balance of power between the branches of government. His so-called "court packing" plan met with furious opposition, and it quickly collapsed. But the attempt galvanized anti-New Deal forces, who staged a resurgence in the 1938 midterm elections.

Interestingly, however, the Supreme Court seemed to get FDR's message. It went on to rule in favor of key pieces of the New Deal, including the Social Security Act. Justices began to retire. "The Supreme Court follows the election returns," Finley Peter Dunne's "Mr. Dooley" once said. It also seems to follow public opinion—then, and now.